EXPLANATORY STATEMENT
Tariff Concession Instrument No. 0914122
Customs Act 1901
Background
Part XVA of the Customs Act 1901 (the Act) sets out a scheme under which Tariff Concession Orders (TCOs) may be made by the Chief Executive Officer of Customs (the CEO). A lower rate of customs duty applies to goods that are the subject of a TCO.
Under section 269F of the Act, a person may apply to the CEO for a TCO in respect of goods. If the CEO is satisfied that the application is not in respect of goods specified in section 269SJ of the Act, which sets out those goods that cannot be subject to a TCO, the CEO must decide whether the application meets the core criteria.
Section 269C of the Act provides that a TCO application meets the core criteria if, on the day on which the application was lodged, no substitutable goods were produced in Australia in the ordinary course of business. Section 269B of the Act provides that ‘goods produced in Australia’ has the meaning given by section 269D, ‘ordinary course of business’ has the meaning given by section 269E and ‘substitutable goods’ in respect of goods the subject of a TCO application, means goods produced in Australia that are put, or are capable of being put, to a use that corresponds with a use (including a design use) to which the goods the subject of the application can be put.
Subsection 269P(3) of the Act provides that if the CEO is satisfied that a TCO application meets the core criteria, the CEO must make a written order (a TCO) declaring that the goods the subject of the TCO application are goods to which a prescribed item of Schedule 4 to the Customs Tariff Act 1995 (the Tariff) specified in the order applies.
Poweriser Enterprises applied for a TCO in respect of certain jumping stilts on 29 April 2009.
Instrument
TCO No 0914122 was made on 17 July 2009. It declares that those certain jumping stilts are goods to which item 50 of Schedule 4 to the Tariff applies since the CEO was satisfied that no substitutable goods were produced in Australia. The general rate of duty on these goods is 5%. The rate of duty for the goods subject to the TCO is free.
Consultation
Subsection 269K(1) of the Act provides in part that as soon as practicable after accepting a TCO application as a valid application, the CEO must publish a notice in the Gazette which includes an invitation to any person who considers that there are reasons why the TCO should not be made to lodge a submission with the CEO. The CEO did not receive any submissions in response to this invitation.
Commencement
Subsection 269S(1) relevantly provides that a TCO is to be taken to have come into force on the day on which the application for the TCO was lodged. TCO No. 0914122 is taken to have come into force on 29 April 2009.
The TCO does not affect the rights of a person (other than the Commonwealth) as at the date of registration so as to disadvantage that person or impose liabilities on a person (other than the Commonwealth) in respect of anything done or omitted to be done before the date of registration. The rights of importers will be beneficially affected. Under paragraph 126(1)(r) of the Regulations, importers of such goods will be able to apply for a refund of duty on goods imported since the day on which the TCO is taken to have come into force. The TCO does not impose any liabilities on any person.
Overview
The Tariff Concession Order No. 0914122, made under the Customs Act 1901, was introduced to provide a lower rate of customs duty for certain jumping stilts, specifically those applied for by Poweriser Enterprises. Enacted in 2009, the order was created to address the issue of imported goods that do not have substitutable Australian-produced alternatives. The Australian Government, through the Chief Executive Officer of Customs, established this concession to support importers by reducing the financial burden of customs duty on these specific goods. The instrument was made after the CEO was satisfied that no substitutable goods were produced in Australia, thus meeting the core criteria outlined in the Act. The order came into force on the date of the application, 29 April 2009, and provides a duty-free rate for the specified jumping stilts, thereby enhancing the competitive position of importers in the market.
Scope and Application
The Tariff Concession Instrument No. 0914122, made under section 269F of the Customs Act 1901, applies to individuals or entities seeking a reduction in customs duty for specific goods imported into Australia. The scope of this legislation encompasses entities such as Poweriser Enterprises, which applied for tariff concessions on certain jumping stilts on 29 April 2009. The application of the Act is triggered by an application to the Chief Executive Officer of Customs, who then assesses whether the goods in question meet the core criteria, notably whether substitutable goods are produced in Australia. Upon meeting these criteria, the CEO issues a Tariff Concession Order (TCO), which specifies the reduced rate of customs duty applicable to the goods. The geographic reach of this Act is national, as it applies to all goods imported into Australia. The Act does not impose any disadvantages or liabilities on persons other than the Commonwealth and does not affect rights as at the date of registration. Additionally, the Act's application can be extended or restricted through subordinate instruments, ensuring flexibility and precision in its implementation.
Key Provisions
The main operative sections of this legislation pertain to the process of applying for and granting Tariff Concession Orders (TCOs) under the Customs Act 1901. Specifically, section 269F allows for an application to the Chief Executive Officer of Customs (CEO) for a TCO in respect of certain goods, provided those goods are not specified in section 269SJ. Section 269C outlines the core criteria that must be satisfied for an application to be considered, namely that no substitutable goods were produced in Australia on the day the application was lodged. Once these criteria are met, as per section 269P(3), the CEO must issue a written order, the TCO, specifying the reduced rate of customs duty applicable to the goods in question.
The Act imposes several obligations on the parties involved. The person applying for a TCO must ensure their application meets the core criteria set out in section 269C. This includes demonstrating that no substitutable goods were produced in Australia on the day the application was made. The CEO, upon receiving a valid application, must publish a notice in the Gazette inviting submissions from any interested parties who might have reasons to oppose the TCO, as required by subsection 269K(1). If no submissions are received, the CEO must proceed to make the TCO. The TCO itself must specify the reduced rate of customs duty applicable to the goods, as per the prescribed item of Schedule 4 to the Customs Tariff Act 1995.
Breach of the provisions outlined in this legislation could lead to various consequences. Firstly, if an incorrect application is made, or if there is a failure to comply with the notification requirements, the CEO may not issue the TCO, leaving the applicant without the tariff concession. Additionally, if the CEO issues a TCO in error, this could lead to financial losses for the Commonwealth, as the correct duty would not be collected. Section 269P(3) mandates that if the CEO is satisfied the application meets the core criteria, a TCO must be made. Failure to adhere to this requirement could result in legal challenges or penalties for non-compliance. However, the specific penalties or consequences for breach are not detailed in the provided text, and would need to be referred to in the broader context of the Customs Act 1901 and related regulations.